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BILL AS INTRODUCED 2007-2008

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H.497

Introduced by Representatives Baker of West Rutland, Barnard of Richmond, Ainsworth of Royalton, Brennan of Colchester, Clark of St. Johnsbury, Clark of Vergennes, Devereux of Mount Holly, Donaghy of Poultney, Errecart of Shelburne, Evans of Essex, Flory of Pittsford, Godin of Milton, Howrigan of Fairfield, Kilmartin of Newport City, Komline of Dorset, Larrabee of Danville, Lawrence of Lyndon, Livingston of Manchester, Marcotte of Coventry, Martin of Wolcott, McAllister of Highgate, McDonald of Berlin, Mook of Bennington, Morrissey of Bennington, O'Donnell of Vernon, Oxholm of Vergennes, Shaw of Derby, Sunderland of Rutland Town, Turner of Milton and Valliere of Barre City

Referred to Committee on

Date:

Subject:  Labor; workers' compensation; minimum weekly compensation; maximum weekly compensation computation; vocational rehabilitation; mental injuries; occupational diseases; alcohol and drug intoxication; compensable injury; causation; statute of limitations

Statement of purpose:  This bill proposes to  (1) make changes to the workers’ compensation law to reduce premiums by removing the minimum amount that an injured worker may receive as compensation; redefining “compensable injury”; reducing the amount of maximum weekly compensation; denying compensability for injuries caused by drug intoxication; and clarifying compensability of occupational diseases and mental and emotional injuries;

(2)  require the use of medical case management review in certain circumstances; (3)  make general changes to vocational rehabilitation benefits; (4)  require drug testing of an injured employee, if requested by the employer, in order for the injury to be compensable; and (5)  reduce the time for filing a claim from three years to one year following a work injury.

AN ACT RELATING TO REDUCING BENEFITS UNDER WORKERS' COMPENSATION

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  21 V.S.A. § 601(18), (19), and (23) are amended to read:

(18)  "Maximum weekly compensation" shall mean means a sum of money equal to 150 100 percent of the average compensation, rounded to the next higher dollar.

(19)  "Minimum weekly compensation" shall mean a sum of money equal to 50 percent of the average compensation, rounded to the next higher dollar. However, solely for the purposes of determining permanent total or partial disability compensation where the employee's average weekly wage computed under section 650 of this title is lower than the minimum weekly compensation, the employee's weekly compensation shall be the full amount of the employee's average weekly wages. For the purpose of determining temporary total or temporary partial disability compensation where the employee's average weekly wage computed under section 650 of this title is lower than the minimum weekly compensation, the employee's weekly compensation shall be 90 percent of the employee's average weekly wage prior to any cost of living adjustment calculated under subsection 650(d) of this title.

(23)  "Occupational disease" means a disease that results from causes and conditions characteristic of and peculiar to a particular trade, occupation, process or employment, and to which an employee is not ordinarily subjected or exposed outside or away from the employment and arises out of and in the course of the employment.

Sec. 2.  21 V.S.A. § 618(a) is amended to read:

(a)(1)  If a worker receives a personal injury by accident arising out of and in the course of employment by an employer subject to this chapter suffers a compensable injury as defined in subdivision (2) of this subsection, the employer or the insurance carrier shall pay compensation in the amounts and to the person hereinafter specified.  The compensation of a person an injured worker who is under guardianship shall be paid to the person's worker’s guardian. 

(2)  “Compensable injury” means a personal injury by accident arising out of and in the course of employment.  The injury, its work related cause and any resulting manifestations or disability shall be established to a reasonable degree of medical certainty, based on objective relevant medical findings and the compensable injury must be the major contributing cause of any resulting injury or disability.  For the purposes of this chapter, “major contributing cause” means the cause that is more than 50 percent responsible for the injury or disability as compared to all other causes combined for which treatment or benefits are sought.  Major contributing cause shall be demonstrated only by medical evidence.  For purposes of this section, “objective relevant medical findings” are conclusions that correlate to the subjective complaints of the injured employee and are confirmed by physical examination or diagnostic testing.

(3)  Mental and nervous injuries.  A mental or nervous injury due to stress, fright, or excitement only is not a compensable injury.  The following shall not be compensable under this chapter:

(A)  A mental or nervous injury suffered without an accompanying physical injury requiring medical treatment.

(B)  A physical injury resulting from mental or nervous injuries unaccompanied by physical trauma requiring medical treatment shall not be compensable under this chapter.

(C)  An mental or nervous injury resulting from being out of work or losing employment opportunities resulting from a preexisting mental, psychological, or emotional condition or due to pain or other subjective complaints that cannot be substantiated by objective, relevant medical findings.

(4)  Mental or nervous injuries occurring as a manifestation of an injury compensable under this chapter shall be demonstrated by clear and convincing medical evidence by a licensed psychiatrist meeting criteria established in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association. 

(5)  “Occupational disease” means a disease arising out of and in the course of employment but does not include ordinary diseases of life to which the general public is exposed outside of employment.  A disease shall be deemed to arise out of employment only if the disease is:

(A)  Directly causally connected to the employment conditions.

(B)  A natural incident of the work as a result of the exposure occasioned by the nature of the employment.

(C)  Proximately caused by employment.

(D)  Not caused by substantial exposure outside of employment.

(E)  Incidental to the character of the business and not independent of the employer-employee relationship.

(F)  The result of exposure connected with employment conditions and was a natural consequence of that exposure.

(6)  An ordinary disease of life is a disease to which the general public is exposed outside of any employment and may be compensable if the following are established by clear and convincing evidence:

(A)  The disease exists and arose out of and in the course of employment and did not result from causes outside of employment; and

(B)  It is an infectious contagious disease contracted in the course of employment in a hospital or sanitarium or laboratory or nursing home or other health care facility and is caused by the direct delivery of health care or in the course of employment as a health care worker; or

(C)  It is characteristic of the employment and was caused by conditions peculiar to the employment.

(2)(7)  If the injury occurred while engaged off the premises of the employer in a recreational activity that is available to the employee as part of the employee's compensation package or as an inducement to attract employees, it shall not be considered to have occurred in the course of employment unless the commissioner finds at least one of the following:

* * *

Sec. 3.  21 V.S.A. § 632 is amended to read:

§ 632.  COMPENSATION TO DEPENDENTS; DEATH BENEFITS

If death results from the injury, the employer shall pay to the persons entitled to compensation or, if there is none, then to the personal representative of the deceased employee, burial and funeral expenses in the amount of $5,500.00 and expenses for out-of-state transportation of the decedent to the place of burial not to exceed $1,000.00.  The employer shall also pay to or for the benefit of the following persons, for the periods prescribed in section 635 of this title, a weekly compensation equal to the following percentages of the deceased employee's average weekly wages.  The weekly compensation payment herein allowed shall not exceed the maximum weekly compensation or be lower than the minimum weekly compensation:

* * *

Sec. 4.  21 V.S.A. § 641 is amended to read:

§ 641.  VOCATIONAL REHABILITATION

(a)  When as a result of an injury covered by this chapter, an employee is unable to perform work for which the employee has previous training or experience, the employee shall be entitled to vocational rehabilitation services, including which may include retraining and job placement, as may be reasonably necessary to restore the employee to suitable employment employability.  The employer may voluntarily provide vocational rehabilitation services to the injured employee.  In the event these services are not voluntarily provided, the employee may present evidence establishing the employee’s inability to perform suitable work and the need for vocational rehabilitation services.  Upon receipt of this evidence the employer shall either provide an entitlement assessment or shall present evidence supporting the denial of vocational rehabilitation services. Vocational rehabilitation providers shall be paid pursuant to a fee schedule determined by the commissioner by rule.  Vocational rehabilitation services shall be provided as follows:

(1)  The employer shall designate a vocational rehabilitation provider from a list provided by the commissioner to initially provide services. Thereafter, the employee may select another vocational rehabilitation provider from a list provided by the commissioner upon giving the employer written notice of the employee's reasons for dissatisfaction with the designated provider and the name and address of the provider selected by the employee the counselor may only be changed after request to and approval by the commissioner, based on evidence that a different counselor would be in the claimant’s best interests.

* * *

(3)  The commissioner shall adopt rules to assure that a worker who requests services or who has received more than 90 days of continuous temporary total disability benefits is timely and cost-effectively screened for benefits under this section. The rules shall:

* * *

(F)  Assure that vocational rehabilitation benefits shall not:

(i)  Extend for more than 52 weeks, unless permitted by the commissioner.

(ii)  Be available to illegal immigrant employees or to immigrant employees while outside of the United States.

(iii)  Continue when an injured employee has been rehabilitated to return to appropriate work based on the realities of the job market at the time the services have been provided.

* * *

(5)  The commissioner may shall set by rule a fee schedule for payment to vocational rehabilitation providers and reasonable reimbursement rates for vocational rehabilitation benefits and services, provided access to vocational rehabilitation services is not diminished, and reasonable choices and access to benefits and services are maintained.  The fee schedule and reimbursement rates shall require the individual vocational rehabilitation counselor who provides services to review, initial, and certify the accuracy of the billing.

* * *


Sec. 5.  21 V.S.A. § 642 is amended to read:

§ 642.  TEMPORARY TOTAL DISABILITY BENEFITS

(a)  Where the injury causes total disability for work, during such disability, but not including the first three days, the day of the accident to be counted as the first day, unless the employee received full wages for that day, the employer shall pay the injured employee a weekly compensation equal to

two-thirds of the employee's average weekly wages, but not more than the maximum nor less than the minimum weekly compensation.  In addition, the injured employee, during the disability period shall receive $10.00 a week for each dependent child who is unmarried and under the age of 21 years, provided that no other injured worker is receiving the same benefits on behalf of the dependent child or children.  However, in no event shall an employee's total weekly wage replacement benefits, including any payments for a dependent child, exceed 90 80 percent of the employee's average weekly wage prior to applying any applicable cost of living adjustment.  The amount allowed for dependent children shall be increased or decreased weekly to reflect the number of dependent children extant during the week of payment.  If the total disability continues after the third day for a period of seven consecutive calendar days or more, compensation shall be paid for the whole period of the total disability.  If the disability continues for a period of 14 consecutive days, the employer shall utilize medical case management review and intervention, and the injured employee shall cooperate with the medical case management.

(b)  An injured employee who has suffered a mental injury that is substantially caused by a physical injury shall not be eligible for further temporary total disability benefits when the employee has reached an end result in regard to the physical injury.

Sec. 6.  21 V.S.A. § 645(a) is amended to read:

§ 645.  AMOUNT PAYABLE

(a)  In case of an injury enumerated in section 644 of this title, the employer shall pay to the injured employee sixty-six 66 and two-thirds percent of the employee's average weekly wages, computed as provided in section 650 of this title and subject to the maximum and minimum weekly compensation rates, for the duration of the employee's permanent total disability, but in no event shall the employee receive benefits for less than three hundred and thirty 330 weeks, and in no event shall the benefits including increases provided pursuant to section 650 of this title be more than the employee’s average weekly wage at the time of the compensable injury.  Benefits under this section shall continue beyond three hundred and thirty 330 weeks if the injury results in the loss of actual earnings or earning capacity after the injured employee is as far restored as the permanent character of the injuries will permit and results in the employee having no reasonable prospect of finding regular employment, provided that the employee shall no longer be eligible for benefits under this section when the employee reaches the age of 62 or otherwise becomes eligible for government-sponsored retirement benefits.

Sec. 7.  21 V.S.A. § 648(a) is amended to read:

(a)  Where the injury results in a partial impairment which is permanent and which does not result in permanent total disability, compensation shall be paid during the period of total disability, as provided in sections 642 and 643 of this title, and at the termination of total disability, the employer shall pay to the injured employee 66 percent of the average weekly wage, computed as provided in section 650 of this title, subject to the maximum and minimum weekly compensation rates, for a period determined by multiplying the employee's percentage of impairment of the whole person by 330 weeks.  The percentage of impairment to the whole person is the percentage of impairment to the particular body part, system, or function converted to the percentage of impairment to the whole person as provided in subsection (b) of this section.

Sec. 8.  21 V.S.A. § 649 is amended to read:

§ 649.  INJURIES NOT COVERED; BURDEN OF PROOF; DRUG

            TESTING

(a)  Compensation shall not be allowed for an injury caused by an employee's wilful intention to cause self-injury or to injure himself or another or by or during his intoxication the employee’s impairment due to alcohol or drug use or by an employee's failure to use a safety appliance provided for his the employee’s use.

(b)  An employee who claims to have suffered a work injury and refuses to be tested for drug or alcohol use shall not be entitled to compensation under this chapter.  This section shall not apply if the employer had actual knowledge of and permitted or condoned the employee’s use of alcohol or drugs.

(c)  The burden of proof shall be upon the employer if he the employer claims the benefit of the provisions of this section.

Sec. 9.  21 V.S.A. § 650(a), (d), and (e) are amended to read:

(a)  Average weekly wages shall be computed in such manner as is best calculated to give the average weekly earnings of the worker during the 12 weeks preceding an injury; but where, by reason of the shortness of the time during which the worker has been in the employment, or the casual nature of the employment, or the terms of the employment, it is impracticable to compute the rate of remuneration, average weekly wages of the injured worker may be based on the average weekly earnings during the 12 weeks previous to the injury earned by a person in the same grade employed at the same or similar work by the employer of the injured worker, or if there is no comparable employee, by a person in the same grade employed in the same class of employment and in the same district.  If during the period of 12 weeks an injured employee has been absent from employment on account of sickness or suspension of work by the employer, then only the time during which the employee was able to work shall be used to determine the employee's average weekly wage.  If the injured employee is employed in the concurrent service of more than one insured employer or self-insurer the total earnings from the several insured employers and self-insurers shall be combined in determining the employee's average weekly wages, but insurance liability shall be exclusively upon the employer in whose employ the injury occurred.  The average weekly wage of a volunteer firefighter, volunteer rescue or ambulance worker, volunteer reserve police officer, or volunteer as set forth in subdivision 1101(b)(4) of Title 3, who is injured in the discharge of duties as a firefighter, rescue or ambulance worker, police officer, or state agency volunteer, shall be the employee's average weekly wage in the employee's regular employment or vocation but the provisions of section 642 of this title relative to maximum weekly compensation and weekly net income rates, shall apply.  For the purpose of calculating permanent total or permanent partial disability compensation, the provisions relating to the maximum and minimum weekly compensation rate shall apply.  In any event, if a worker at the time of the injury is regularly employed in a higher grade of work than formerly during the 12 weeks preceding the injury and with larger regular wages, only the larger wages shall be taken into consideration in computing the worker's average weekly wages.

(d)  Compensation computed pursuant to this section shall be adjusted annually on July 1, so that such compensation continues to bear the same percentage relationship to the average weekly wage in the state as computed under this chapter as it did at the time of injury, but in no case shall the compensation pursuant to sections 642, 644, 646, and 648 of this title be more than the injured employee’s average weekly wage at the time of the compensable injury

(e)  If weekly compensation benefits or weekly accrued benefits are not paid within 21 60 days after becoming due and payable pursuant to an order of the commissioner, or in cases in which the overdue benefit is not in dispute, ten percent of the overdue amount shall be added and paid to the employee, in addition to interest and any other penalties.  In the case of an initial claim, benefits are due and payable upon entering into an agreement pursuant to subsection 662(a) of this title, upon issuance of an order of the commissioner pursuant to subsection 662(b) of this title, or if the employer has not denied the claim within 21 60 days after the claim is filed.  Benefits are in dispute if the claimant has been provided actual written notice of the dispute within 21 60 days of the benefit being due and payable and the evidence reasonably supports the denial. Interest shall accrue and be paid on benefits that are found to be compensable during the period of nonpayment.  The commissioner shall promptly review requests for payment under this section and, consistent with the criteria in department rule 10.13, shall allow for the recovery of reasonable attorney fees associated with an employee’s successful request for payment under this subsection.

Sec. 10.  21 V.S.A. § 660(a) is amended to read:

(a)  A notice given under the provisions of this chapter shall not be held invalid or insufficient by reason of any inaccuracy in stating the time, place, nature, or cause of the injury, or otherwise, unless it is shown that the employer was in fact misled to the injury as a result of the inaccuracy.  Want of or delay in giving notice, or in making a claim, shall not be a bar to proceedings under the provisions of this chapter, if it is shown that the employer, the employer's agent, or representative had knowledge of the accident or that the employer has not been prejudiced by the delay or want of notice.  Proceedings to initiate a claim for a work-related injury pursuant to this chapter may not be commenced after three years one year from the date of injury.  This section shall not be construed to limit subsequent claims for benefits stemming from a timely filed work-related injury claim.

Sec. 11.  21 V.S.A. § 668 is amended to read:

§ 668.  MODIFICATION OF AWARDS

Upon the commissioner's own motion or upon the application of any party in interest upon the ground of a change in the conditions, or whenever doubts have arisen as to the jurisdiction of the commissioner at the time the petition was presented, the commissioner may at any time within six years of the date of award review any award by giving at least six days' notice thereof to the parties personally, or to the attorneys appearing in the cause.  On such review, the commissioner may make an order ending, diminishing or increasing the compensation previously awarded, subject to the maximum or minimum provided in this chapter.  If it appears that the petition for hearing was presented without previous authority or that for other reason the commissioner did not have jurisdiction in the cause, the commissioner may make an order striking off the award, and shall state conclusions of fact and rulings of law and immediately send to the parties a copy of the award.  Such a review shall not affect any money already paid.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us